Burlington Northern Railroad v. Circuit Court, Seventh Judicial Circuit, Fall River County
497 N.W.2d 440
S.D.
1993
Check Treatment

*1 light, light To the Committee Local held Government up this ballot Legislature, house of the take separated side in each State through the clearly passes Therefore, your quality. us a heed. Give taste punched chad. partially of the intend- was presume that this alteration we contrary a vote for Mortenson.

ed as Duffy's chad # 86 was

is not clear because slightest. in the

not altered facts, impossible not these it is

Under fact, In it intent. this voter’s

determine in- this voter only possible, likely Therefore, to vote Mortenson. tended NORTHERN RAILROAD BURLINGTON for Morten- that this counts we hold vote COMPANY, Applicant, son. portion reverse that We COURT, JU CIRCUIT SEVENTH not counted for concluding that Exhibit 4 is CIRCUIT, DICIAL FALL RIVER causes the elec- Mortenson. Because this COUNTY, Respondent, tie, to result a we remand tion that further court with directions and pursuant proceedings be conducted River, political Fall a subdivi Stellner, 12-21-43.8 355 N.W.2d at Dakota, and sion of State of South 3. 23-1, Edgemont School District Interve Respondents. and nors MILLER, C.J., and and WUEST 17938. AMUNDSON, JJ., concur. Supreme Court of South Dakota.

HENDERSON, J., specially. concurs Argued Aug. 1992. HENDERSON, (specially concur- Justice Decided March ring). Rehearing April Denied dismay, reviewing the de With ballot novo, express I must the voter of to vote for Mor- Exhibit intended

ballot Thus, attorney’s race

tenson. this state’s tied at 705 votes for each

appears

candidate. because, dismayed 12-

I am under SDCL

21-43, attorney’s race will be state’s lots, i.e., by by the drawing of

determined Thus, decides it all.

chance. Dame Fortune way pick public a our officials!

What greater need to sustain a de- virtues

mocracy than fortune. provides: may appear Each such at the 8. SDCL 12-21-43 dates. candidate place designated by person time and either in or When a tie vote candidates is found between representative, whereupon presence recount, by any exist on the basis of such authority charged responsibility with the such tie of such vote it cannot be determined reason issuing the or elec- certificate of nomination elected, has been nominated or it shall be who tion, the candidate or candidates entitled to by duty authority charged law with elec- certificate or certificates of nomination or issuing responsibility the certificate drawing by shall be of lots in place tion determined election or nomination to fix a time and authority, drawing the manner directed in- of lots such candidates vote, elec- giving nomination or in such tie reasonable notice certificate certificates of volved place accordingly. candi- be issued of such time to each of such tion shall *2 McCullen, Bangs,

Mark F. Marshall of Simmons, Butler, Foye Rapid City, & applicant. Barnett, Gen., Atty. Craig

Mark M. Ei- Gen., chstadt, Pierre, Atty. Asst. for re- spondent. Ginsbach,

Patrick M. Fall River Atty., Springs, for in- Deputy, State’s Hot County. Fall River tervenor Pluimer, A. Pluimer of & Richard Carr Fourche, Edgemont for intervenor Belle Dist. 23-1. School AMUNDSON, Justice. Company

Burlington Northern Railroad Northern) (Burlington brings Applica- an seeking review tion for Writ Certiorari (Seventh of the Seventh Judicial Circuit’s Circuit) from jurisdiction to hear Department of Reve- the South Dakota Burlington (Department) valuation of nue’s property. centrally assessed Northern’s grant the Writ of Certiorari.

FACTS Northern, Railroads, as by Department un- are Un- provisions of SDCL ch. 10-28. der Secretary of chapter, Revenue der property “ac- (Secretary) assesses all of the opera- tually necessarily used railway single as a unit. tion” of the 1,May each or before SDCL 10-28-1. On an annual state- required to file railroad ment, prescribed the contents of which Secretary assessing to assist property. railroad’s written notice then receives Each railroad as- Northern’s the unit value Department of from in Fall River increased year. for that sessed $35,459,734.00. $3,307,692.00to Bur- from disagrees with the as- A railroad then a writ lington sought the assessment to the sessment vacating certiorari *3 (Board). Equalization Board of State judgment of the Seventh for lack of Circuit right appeal the 10-38-2. This SDCL jurisdiction. than the is no different assessment taxpayer in the any other appeal granted ISSUE Regardless of the local level. state taken, equal- Board appeal an is whether the Circuit ex- Whether Seventh Judicial them and allocates izes the assessed values statutory jurisdic- appellate its ceeded oper- the railroad counties in which tion? 10-6-34.1, Depart- ates. SDCL railroad, county au- then notifies the ment ANALYSIS ditor, municipal and finance officers court, 21-31-1, may This under SDCL 10-28-15, -16, and -17. allocation. grant of certiorari an a writ when inferior of in the form a “Certif- This notification is jurisdiction, court “exceeded has and [its] Equalization and Assessment of icate of nor, appeal there writ of error or is no (Certificate). Levy” court, any plain, the other the of received, did speedy, adequate remedy.” and This De- appeal, its assessment from 1991 upon court’s review writ of certiorari “can- 26, However, September on partment. not be further than to determine extended 1991, (County) issue County Fall River took regular- inferior has whether the court ... Burlington North- the valuation of with authority ly pursued the such court....” of property railroad located within its ern’s Thus, question the before appeal and a notice of filed boundaries simply is whether the Circuit court appeal 1991. The the Certificate for proper appellate jurisdiction court had that Board undervalued certain asserted County’s appeal hear from the Certificate. utility in Fall Our does not to the valua- review extend County. The record the Board River tion itself. Circuit and the was certified the Seventh right to any appeal The is statuto granted Circuit intervention to Seventh by ry legislature. This and established the (District), # 23-1 Edgemont School District consistently that recognized court has the Light Company Black Hills and and Power appeal purely statutory to an L). (BHP & may statutory no taken appeal be absent 1992, 11, February BHP & L filed a On Dep’t authorization. South Dakota the questioning to dismiss Seventh

motion 241, Freeman, 241 Transp. v. 378 N.W.2d jurisdiction. Prior to the Seventh Circuit’s Golden, (S.D.1985); 88 Oahe Enter. Inc. dismiss, hearing BHP the motion Circuit 296, 299, 485, (1974); 218 487 L settled with and District. & Bd. v. Sch. Dist. County Sch. Cottonwood 530, 26, 531, 882, 1992, 41, No. March Board also filed a 81 S.D. 137 On Estate, (1965); alleging jurisdiction. no In re 71 motion to dismiss Swanson’s 622, 623, 663, Circuit denied motion on S.D. 28 N.W.2d The Seventh appeal An attempted 1992.1 from an order ad April appeal act from lies ministrative litigation The Seventh Circuit settled nullity jurisdiction is a and confers no remaining parties. Burlington between except to it. the court dismiss Oahe En to, party Northern was neither a nor took Inc., ter. 88 S.D. at 218 N.W.2d 487. in, any part litigation. Constitution, findings of fact con- the South Dakota entered its Under Circuit appellate whereby the circuit courts have such of law valuation clusions “[t]he ruling by by appealed This the court was not Board. situated; action provided by type law.” It is this jurisdiction as Id. V, By appeal allege art. S.D.Const. “[t]he § appeals jurisdiction has to take in this case. judgments, all decrees or orders from final however, An is a jurisdiction, all of limited inferior courts prerequisite to an to the circuit tribunals, pre- cases officers or legislature, court. in the Id. scribed statute.” arena, Department has vested the pro- There are several methods of authority with to make initial valuation in Title Taxation. vided statute Board as initial established appel briefly Seventh Circuit addressed utility body any aggrieved late to look 10-1- appeal provided in SDCL it disputes toward relief event *4 provides of right ap 41. That the statute Department’s By statutory valuation. this any aggrieved to for peal the circuit court procedure, legislature thereby the has lim secretary the of party from a decision of from appeal ited a direct this administra relating “licensing, revocation revenue to 10-38-2, agency. tive license, compromise, adjustment or of of legislature “The exercises prerogative this taxes_” taxes, of or refund SDCL 10- remedy when it locates the for some cause inapplicable 1-41. statute to these That is agency.” of action in an In administrative adjustment as it deals with the or facts “ cases, has agency ‘that exclusive equalized refund of taxes and not with the primary jurisdiction precludes which the property disputed as here. valuation of parties directly seeking adjudication from Certificate, Furthermore, the 1991 from ” a Department in court.’ v. Claggett of ap- their County and District take which (S.D.1990) Revenue, 212, 464 N.W.2d 213 decision, peal, is a final or not (quoting Meyerink v. Northwestern Pub. is the annual notification that but rather Co., 180, (S.D.1986)). Serv. 391 N.W.2d 184 County receive to the as- and District as of the utilities within their sessed values issue in the dispute At is value by Department as determined boundaries property of owned Northern equalized by 10-28- Board. See SDCL in lying County. Burlington Northern 16, -17. received its valuation assessment from De partment equalized as Board. At no fit legislature has not seen to The however, point, did Northern provide appeal from the Certificate for appeal to this valuation Board. Because pro issued. SDCL 10-38-2.2 The statute there no from which to was Board decision only appeals that such are to be made vides appeal, necessary prerequisite the for an feeling ag by “[a]ny utility to Board appeal court not met. to circuit was depart the of the grieved by action state legislature provides for appeal the “When added). (emphasis of ment revenue.” Id. to court from an administrative right provide fails to the of statute appellate juris the agency, circuit court’s than appeal parties Board for other to compliance with condi depends diction aggrieved utility. Id. legislature.” precedent by the tions set appealable. of The decision Board also 464 N.W.2d Claggett, appeal from Board’s facts in State ex. This court faced similar decision is not limited to utilities but County 87 Pennington Mernaugh, rel by any party. interested brought 495, 210 409 In Mer N.W.2d firm, “Any person, corporation, naugh, Dakota counties several South district, taxing governmental subdivision sought in the value relief from a reduction may appeal from a agency interested ... their centrally property within of assessed equalization of decision of the state board There, here, centrally as no in boundaries. county court which to the circuit for taxpayer appealed the assess- had subject which is the provide 1963 S.D.Sess.L. ch. to for a uni- assessed. 2. This was enacted statute appeal form utilities public method § appeal to at Board decision from which to the 210 N.W.2d Id. ment Board. to the utili- circuit court. The assessed tax- held that because 411. This court taxpayers) had not payer appealed Falls had (centrally City Sioux ties Board, did not Board, county, the counties appealed although to the and the not opportunity appeal level, party subsequently ap- have an available a at Board Id. Board. This This pealed a decision the circuit court. court held proper remedy for an that the county party further held have to did not be a appeal aggrieved entity with appeal appeal to Board order to 499-500, Id. at disposition by certiorari. Board’s decision to circuit court. Id. at at 411-12. at 421. Unlike the case at bar, the Falls contain City Sioux facts it is clear that the Mernaugh, Applying appeal prerequisite jurisdiction in its exceeded Seventh Circuit appeal thus the authorized the circuit hearing provide precedent court therein does not by Bur- was first taken because no the appeal this case. Board. This court can- lington recognize where language statutes find statutorily provide legislature failed to fias unambiguous. clear and and Dis- Freeman, at 241. Based one. 378 N.W.2d appeal to trict have no *5 upon appropriate construction review and prior appeal Circuit absent a Board clearly we find it current grant We therefore Northern. right to unambiguously provides the vacating judg- the writ of certiorari only level to utilities. at Board ment of Circuit for lack of the Seventh an appeal Absent jurisdiction. there is Mernaugh, at circuit court. MILLER, C.J., and WUEST and also 10-11- See JJ., HENDERSON, concur. appropriate pro- to also 43. Whether it is SABERS, J., at Board specially. level vide concurs taxing question properly is a more entities SABERS, (concurring specially). Justice legislature. resolved Cottonwood point I specially write to also out that the Dis., 81 S.D. at Sch. upon trial itself the task of court took expedient rule that could It reassessing the value of North- right to District should have a if the court case, property. ern’s Even did have in this that contest the valuation would, proper Dakota infringe legis- appellate jurisdiction, South opinion, in our on the any necessary appellate rights, clearly provides law lative to establish responsibility to do. Dis- which we decline reassessment Department, in which the court. trict have a forum to seek and not See SDCL appropriate right establishment of 10-38-14 and SDCL appeal, legislature. Circuit, County,

urge City application Sioux Falls Equalization, v. State Bd. 87 S.D. City 203 N.W.2d 419 facts clearly distinguishable Sioux Falls they include a this case because